R v C, G

Case [2013] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, G

[2013] SASCFC 83

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

16 August 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - OTHER CASES

The appellant was charged with four counts of unlawful sexual intercourse with JM and five counts of unlawful sexual intercourse and one count of procuring an act of gross indecency with JM’s sister, NM.  He was also charged with persistent sexual exploitation of DF, AP and AP’s brother, BP.  He pleaded guilty to one count of unlawful sexual intercourse with NM and not guilty to all other charges.  After a trial by judge alone, a Judge of the District Court convicted the appellant on all counts. 

The appellant appeals against his conviction on the following grounds:

1.       the Judge erred in ruling that evidence relevant to the appellant’s conduct in relation to the female complainants, JM and NM, was cross-admissible in relation to the counts involving the male complainants, DF, AP and BP, and vice versa;

2.       the Judge erred in finding that there was no reasonable possibility of concoction or contamination as between the complainants;

3.       the Judge erred in admitting evidence of discreditable conduct to which no objection was taken at trial;

4.       the Judge erred in his findings as to corroboration or supporting evidence in relation to JM, NM and AP;

5.       the Judge failed to make factual findings in respect of the fourth count of unlawful sexual intercourse with JM;

6.       the Judge erred in the use which he made of the plea of guilty to the fifth count involving unlawful sexual intercourse with NM;

7.       the Judge failed to find two uniquely identified acts of sexual exploitation against each of DF, AP and BP;

8.       the Judge failed to direct himself as to the elements of indecent assault being acts of sexual exploitation found in respect of BP.

Held by the Court dismissing the appeal:

1.       The evidence of the male and female complainants was cross-admissible due to the degree of similarity and underlying unity and pattern disclosed by that evidence (at [57]-[60]).

2.       The Judge did not err in excluding a reasonable possibility of concoction or contamination (at [55]-[56]).

3. Section 34P of the Evidence Act 1929 (SA) does not require a…

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AGLC
R v C, G [2013] SASCFC 83
Case
[2013] SASCFC 83
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against convictions for sexual offences. The appellants, identified as R v C and G, were convicted by a judge sitting without a jury. The appeal was heard by Gray, Sulan and Blue JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The legal issues before the Court of Appeal included whether the trial judge erred in admitting evidence of inter-admissibility, specifically concerning the alleged propensity or tendency of the defendant to engage in similar conduct with multiple complainants. The Court was also required to consider whether the trial judge properly assessed and applied the principles of corroboration or supporting evidence in relation to the complainants' accounts. Furthermore, the appeal raised a question regarding the trial judge's handling of Count 4, specifically an alleged oversight in not explicitly stating a finding of guilt beyond reasonable doubt for that particular offence, and whether the judge had adequately identified the elements of the offence of indecent assault.

The Court of Appeal found that the trial judge had fairly weighed the evidence on inter-admissibility, noting marked similarities in the defendant's conduct towards each complainant, including specific sexual acts and the location and timing of the offending. These similarities were considered to raise the improbability of the events occurring by mere coincidence, and the probative value of this evidence was found to substantially outweigh any prejudicial effect. Regarding corroboration, the Court held that the judge's approach was not fairly criticised, finding that evidence such as the complainants' vaginal bleeding, which was brought to the attention of the defendant's wife and excluded as being related to menstruation, provided support for their accounts. Similarly, the tearing up of photographs by one complainant was seen as independent evidence supporting his allegations. The Court also addressed the issue of Count 4, accepting the trial judge's explanation that the failure to explicitly state a finding of guilt was an oversight, and that the judge had indeed sentenced the defendant on all counts, including Count 4. The Court concluded that the judge's findings of fact made out each element of the offence of indecent assault, despite not expressly identifying them.

Ultimately, the Court of Appeal was satisfied that the prosecution's case was overwhelming and that there was no basis to suggest the verdicts were unreasonable or unsupported by the evidence. No risk of a miscarriage of justice was demonstrated, and consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Another example of legislation obliging a judge to follow a procedure notwithstanding the consent of the parties is to be found in section 9 of the Evidence Act. That section concerns the power of a judge to permit a witness to give evidence without taking an oath. In Starrett,[25] this Court considered that a court is required to make the appropriate enquiries and that a failure to do so is an error of law. Doyle CJ observed:[26] Guided by that authority, I conclude that the irregularity is a substantial one. It gives rise to a miscarriage of justice. The trial has not been conducted regularly. Although the irregularity does not affect the credibility of the evidence, the departure from the proper procedures is fundamental, and makes it inappropriate to apply the proviso. This is what the High Court has described as a "radical or fundamental error", which may "go either to the form of the trial or the manner in which it was conducted": Wilde v The Queen(1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ. I consider that it would not be appropriate to apply the proviso in the present case. As I have said several times, the irregularity is a substantial one. The basis upon which a witness gives evidence, sworn or unsworn, is a fundamental aspect of the trial system.Accordingly, while it is most regrettable that the verdict should be set aside on what may appear to be a technicality, I consider that the court has no choice other than to allow the appeal, set aside the conviction and to order a retrial. Hopefully, this decision will bring home to trial judges and to counsel the importance of paying appropriate attention to the requirements of the Act in relation to the giving of evidence. While the ultimate responsibility in this respect is that of the judge, counsel in the case also have a responsibility to attend to the appropriate procedure. In the present case it is regrettable that neither the prosecutor nor counsel for the defence raised these matters with the judge.[Emphasis added.]It may be readily understood why the circumstance that occurred in Starrett[27] amounted to an error of law. We refer to the emphasised passages in the above extract. The considerations that arose in Starrett[28] do not arise under section 34P. A failure to consider all the matters raised by section 34P does not give rise to a radical or fundamental error where there has been no objection to the admissibility of that evidence. Section 34P does not address a fundamental aspect of the trial system. [25] R v Starrett (2002) 82 SASR 115.[26] R v Starrett (2002) 82 SASR 115, 122.[27] R v Starrett (2002) 82 SASR 115.[28] R v Starrett (2002) 82 SASR 115. In our view, counsel’s concession as to admissibility in the present proceeding operated to exclude any obligation on the Judge to consider the admissibility of the evidence strictly in accordance with section 34P. Questions as to the proper use of the evidence remained for consideration. With respect, we disagree with the construction advanced by White J in C, CN.[29] We consider that the submissions of the Director should be accepted. [29] R v C, CN [2013] SASCFC 44.Concoction

Decision

Reasons for decision

One further complaint was advanced on this topic. It was said that the Judge failed to identify the elements of the offence of indecent assault. It is to be accepted that the Judge did not expressly do so. However, his Honour’s findings of fact make out each of the elements of that offence. We do not consider that there can be any suggestion that the Judge failed to turn his mind to the elements of the offence of indecent assault or that he had any misunderstanding about those elements. Conclusion When the entirety of the evidence is reviewed, we are satisfied that this was an overwhelming prosecution case. There is no basis to suggest that the verdicts were unreasonable or cannot be supported having regard to the evidence. No risk of a miscarriage of justice has been demonstrated. This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

We are satisfied that the Judge fairly weighed the evidence on the topic of inter-admissibility. Earlier in these reasons, we have set out in some detail the evidence of each of the complainants. That evidence discloses that the defendant engaged in a course of conduct in regard to each complainant that had marked similarities to the course of conduct with the other complainants. His sexual activity included anal sexual activity, masturbation of the complainants and masturbation of himself in front of the complainants. The sexual offending against each complainant included offending that occurred in the defendant’s home at night. The accounts of JM and NM on the one hand, and DF, AP and BP on the other, revealed such similarities and an underlying unity and pattern that it raised to the sufficient degree the improbability of the events occurring by mere coincidence and other than as alleged by the prosecution in the absence of concoction between the respective witnesses. The probative value of the discreditable conduct evidence substantially outweighed any prejudiced effect on the defendant. We see no basis on which it can be said that the Judge erred in reaching his conclusions on inter-admissibility. Corroboration The Judge’s approach to corroboration or supporting evidence was criticised. Earlier in these reasons we have extracted the portion of the Judge’s remarks in regard to corroboration. Complaint was made about the Judge’s reference to the evidence of JM and NM about vaginal bleeding. JM had brought the fact of the bleeding to the attention of the defendant’s wife at the time of the offending, NM could not recall discussing the issue of bleeding with the defendant’s wife, but did recall being provided with a sanitary pad by the defendant’s wife. The defendant’s wife raised this matter with the girls’ mother. Evidence from the mother of the girls excluded the bleeding from being associated with any commencement of the girls’ periods. As a consequence, the evidence provided some support to the accounts of JM and NM. In regard to AP, the Judge found some support for his testimony in his tearing up of photographs of the defendant, which was independent evidence of the allegations that he made against the defendant. The Judge accorded this evidence limited weight in showing consistency of conduct on the part of the complainant. We do not consider that the Judge’s approach to corroboration or supporting evidence can be fairly criticised. We do not consider that the Judge misused this evidence. Count 4 Count 4 was not the subject of a specific ground of appeal. The Court was informed that the issue was raised with the Judge during sentencing submissions. On that occasion, the Judge sentenced the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) on all counts including count 4. The Judge indicated that the failure to specifically refer to a finding that the act of sexual intercourse constituting count 4 had been proved beyond reasonable doubt was “an oversight”. The Judge later indicated that he had not sent a trial report because he had not been aware of this issue and had not been provided with a copy of the final grounds of appeal.